The Goldstone Report: A response to Lawrence Siskind’s “Lawyer’s Perspective”

Posted: October 21st, 2009 | Author: | Filed under: In the News, war | Tags: , , , | 2 Comments »

A friend sent me this article, dealing with the Goldstone report, which appeared in a San Francisco legal publication. The author, attorney Lawrence J. Siskind, examines the report from a legal perspective, and in doing so, raises most of the arguments Israel is using these days.

I thought it might be a good opportunity to join the debate regarding the Goldstone report. So here is Siskind, followed by my replay:

The Goldstone Report: A Lawyer’s Perspective

Commentary By Lawrence J. Siskind

October 16, 2009

Last month, the Human Rights Council of the United Nations formally released a 575-page report entitled “Human Rights in Palestine and Other Occupied Arab Territories.” Popularly known as the “Goldstone Report,” it deals with Israel’s military campaign in Gaza between December 2008 and January 2009. Although it includes some language critical of Hamas, the report directs most of its fire against Israel, which it accuses of “war crimes and possibly crimes against humanity.”

Much has been written about the Goldstone Report by international scholars and analysts. But no one has bothered to examine it from the perspective of an ordinary civil litigator. The report purports to be a legal document: evaluating evidence and arriving at legal conclusions. Its chief author, Richard Goldstone, is a noted South African judge. A lawyer’s review seems appropriate.

To fill that gap, this article examines the Goldstone Report from a lawyer’s perspective. So viewed, the report is not merely biased, it is a litigator’s worst nightmare.

* * *

Imagine you represent a redhead. You walk into the courthouse, and the first thing you see is a “No Redheads Need Apply” sign. You would not feel optimistic about your chances.

That is how Israel probably felt upon learning that its wartime conduct would be judged by a fact-finding mission appointed by the so-called “Human Rights Council” of the United Nations. The council has the functional equivalent of a “No Israelis Need Apply” sign outside its door. As presently structured, the body has 47 seats, distributed among the U.N.’s regional groups. Thirteen seats are reserved for Asia. Israel is in Asia. But Israel has been blocked from joining the Asian regional group by Arab countries. So, somewhat anomalously, it sits with the “Western European and Others Group.” The Western Europeans (and Others) permit Israel to do so only for New York activities. The council sits in Geneva. So Israel is effectively and permanently excluded from membership.

Now back to the imaginary lawyer. You walk past the “No Redheads Need Apply” sign. You’re a natural optimist, so you hope that once the panel hears your evidence, they’ll rule for your client, regardless of hair color. Then you start reading the court’s past rulings. You discover that virtually every case handled by this court involves redheads, and every decision comes down against them. In fact, the court’s main business appears to be ruling against redheads.

That pretty much sums up the record of the Human Rights Council. In its first years of operation, it has issued 25 resolutions. Of these, 80 percent condemned Israel. (The others dealt with North Korea and Myanmar.) Meanwhile, the council has terminated human rights investigations into Iran and Cuba. To give the council its due, it has also “expressed concern” over Sudan’s policies in Darfur — where an estimated 200,000 people have been killed and 2.5 million have been displaced. But it stopped short of condemning Sudan. In fact, the ccouncil praised Sudan for its cooperation. After all, it’s not as if the Sudanese had behaved like Israelis.

Now back to the lawyer. Despite the policy excluding redheads like your client, despite the consistent record of always ruling against redheads, you screw up your courage and enter the presiding judge’s courtroom, and wait for your case to be assigned for trial. When it is, the presiding judge peers down at you and announces: “Please report to Courtroom No. 4. After a fair trial, the panel of judges will condemn your client and impose damages.”

“But your honor,” you interject, “the trial hasn’t started yet. How do you know the judges will rule against my client?”

The presiding judge looks at you quizzically. “I beg your pardon. But wasn’t that the reason they were impaneled?”

If that scenario seems far-fetched, imagine Israel’s reaction to the actual language of the Jan. 12, 2009, resolution of the Human Rights Council, assigning the Gaza inquiry to “an independent international fact-finding mission.” Remember that the resolution was drafted before the fact-finding mission began finding any facts.

The Human Rights Council ,

Guided by the principles and objectives of the Charter of the United Nations and the Universal Declaration of Human Rights, …

Recognizing that the massive ongoing Israeli military operation in the Occupied Palestinian territory, particularly in the occupied Gaza Strip, caused grave violations of the human rights of the Palestinian civilians therein, exacerbated the severe humanitarian crisis in the Occupied Palestinian Territory, and undermined international efforts towards achieving a just and lasting peace in the region, …

Requests the United Nations High Commissioner for Human Rights to report on the violations of human rights of the Palestinian people by the occupying Power, Israel …

Decides to dispatch an urgent independent international fact-finding mission, to be appointed by the President, to investigate all violations of international human rights law and International Humanitarian Law by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression, and calls upon Israel not to obstruct the process of investigation and to fully cooperate with the mission.”

In short, the “independent” mission was impaneled to investigate actions deemed violations of human rights, and acts of aggression by Israel, even before the investigation started. The references to “occupied Gaza” must have sounded particularly harsh to Israeli ears, since the rocket attacks from Gaza on Israel’s civilian population intensified immediately after Israel ended its occupation.

Again, back to the lawyer. Shaken, you walk down the corridor to Courtroom No. 4. When you see who is sitting on the bench, your heart sinks even lower, if that’s possible. For one of the judges on the panel has already publicly announced that your redheaded client is guilty.

In April, the president of the council appointed professor Christine Chinkin of the London School of Economics to sit in judgment over Israel. Her appointment occurred despite the fact that on Jan. 11, Chinkin had signed a letter to the London Times , in which she already judged Israel guilty.

“Israel’s actions amount to aggression, not self-defence … . As things stand, its invasion and bombardment of Gaza amounts to collective punishment of Gaza’s 1.5 million inhabitants contrary to international humanitarian and human rights law. In addition, the blockade of humanitarian relief, the destruction of civilian infrastructure, and preventing access to basic necessities such as food and fuel, are prima facie war crimes.”

At this point, the hypothetical breaks down. It’s simply impossible to imagine any American litigator participating in such a charade. Israel decided it could not participate either. It announced it would take no part in the sham. At the same time, it announced it would investigate and, where appropriate, prosecute allegations of wrongdoing by its armed forces.

* * *

The Goldstone Mission proceeded without Israel’s participation. Of course, its findings of Israeli “war crimes” were a foregone conclusion. Given its origins, any other determination would have been shocking.

But a few more lawyer observations might be in order.

First, the mission operated according to a peculiar code of evidence under which any testimony proffered by Palestinians was believed — unless it happened to support Israel, in which case it was disbelieved. A flagrant example concerns the use by Hamas of human shields: gathering women and children to target areas to deter the Israel Defense Forces from attacking those sites. The mission believed the Hamas-sponsored witnesses who testified that such things never happened. But then someone produced a video (posted on YouTube) of Fathi Hammad, a Hamas member of the Palestinian Legislative Council, in which he publicly confirmed and lauded the use of women, children, and the elderly as human shields:

“The Palestinian people has developed its [methods] of death seeking. For the Palestinian people, death became an industry, at which women excel and so do all people on this land: the elderly excel, the mujahedeen excel and the children excel. Accordingly, [Palestinians] created a human shield of women, children, the elderly and mujahedeen against the Zionist bombing machine, as if they were saying to the Zionist enemy: ‘We desire death as you desire life.’”

Mr. Hammad was one of the few Palestinian sources the mission chose not to believe.

Second, after finding that Israel acted with the “intention to inflict collective punishment on the people of the Gaza Strip in violation of international humanitarian law,” the mission operated under a code by which any evidence inconsistent with this finding was disregarded or explained away. In the case of Israel’s warnings to civilians to flee combat areas, this required some creative thinking. The IDF had gone to great lengths to warn the civilians of where and when it would conduct operations so that civilians could get out. According to numbers cited in the report, the IDF made 20,000 telephone calls on Dec. 27 and another 10,000 on Dec. 29, 2008. During the campaign, the Air Force dropped a total of 2.5 million leaflets, warning people of attacks.

The mission faced a paradox. Why would an army go to such extremes to avoid civilian casualties if its goal was to inflict collective punishment on the same civilians? The best the mission could do was to complain that the telephone calls and leaflets “lacked credibility and clarity.” In one case, the mission even blamed the IDF for issuing warnings too early. The Israelis issued two telephone warnings to the owners of a business located in the tallest building in an area to clear out. Because of its height, the building was of obvious military importance. But the Israelis did not get around to attacking the building until five days later. So the mission faulted the Israelis for issuing their warnings too early, as a result of which “the owners and their staff suffered anxiety.”

When the Allies bombed Berlin and Tokyo during World War II, they did not issue warnings to the civilian populations, early or late. They simply leveled their neighborhoods. According to the mission, that might have been preferable, since advance warnings might have caused the Germans and Japanese to “suffer anxiety.”

* * *

When the Goldstone Report was first issued, it had considerable impact. The New York Times published an op-ed piece the following day by Judge Goldstone himself, seeming to equate Gaza with Darfur. “Western governments … have pushed for accountability in places like Darfur, but now [they] must do the same with Israel,” he wrote. But the more time observers spent studying the lengthy Goldstone Report, the less credibility it retained. A move to refer the report from the Human Rights Council to the Security Council for action has been deferred until March.

In the meantime, civil litigators in this country can take heart. No matter how tough your case may seem, no matter how unpopular your client, no matter how hostile the local judge, just imagine being engaged to represent Israel in the international arena. Suddenly your regular caseload will appear a lot lighter.

Contributing writer Lawrence J. Siskind, of San Francisco’s Harvey Siskind, specializes in intellectual property law.

A. The fact that Israel is not represented at the HRCUN does not equal a situation in which a redhead is tried in a court where redheads are not allowed. Israel is not a “social group” in the international community (as are “redheads” in a society) but rather a single defendant. According to Siskind’s logic, we should sit the defendant with the jury, and only than we could call this a fair trail.

B. Also, the fact that the HRCUN is biased (as are all international institutions) does not mean that the report itself is biased. It can be a good starting point for a piece about the nature of the HRCUN in general, but it does not necessarily mean that Goldstone will produce a biased report.

For example, let’s say there were five murder cases in a small town last month, but the police only go after one guy – and founds evidence that he is guilty in one of the cases. Should he be set free on this ground, or should we deal with him, but also encourage the police to go after the rest of the killers?

C. this leads me to a more general point regarding the whole “double standards” claim Israelis and their supporters are raising recently. I referred to it a few weeks ago here, and the basic idea is this: what exactly is Siskind aiming at? That Israel should be allowed to act as the Sudanese do in Darfur? Will that be “fair”? His examples from WW2 are even worse. Nobody in their right mind praises the bombings of Dresden, Tokyo or Hiroshima as heroic acts anymore. Actually, people tend to look at them as sort of war crimes – not similar to what the Nazis did, but unjustified just the same. So again, what is it exactly that Israel is seeking from the world when it complains about “hypocrisy” and “double standards”? A permission to kill Palestinians?

D. Israel decided it could not participate either. It announced it would take no part in the sham. At the same time, it announced it would investigate and, where appropriate, prosecute allegations of wrongdoing by its armed forces.

This is simply false. Even if we accept the idea that our redhead will investigate and try himself, Israel never investigated anything. In fact, the cabinet decided again just yesterday not to go on with internal investigation of the claims in the Goldstone report – not even in order to reach evidence that will help contradict and fight the report.

There was an army internal inquiry of several cases, but this proceeding does not resemble an investigation even by Israeli standards. It consists of the commanding officer of the unit involved “checking what happened” with the soldiers and officers of his unit, and then writing a short report. even MP is not involved.

As for Israel not cooperating with the Goldstone team – did anyone consider the possibility – just for the sake of the debate – that Israeli leaders knew that the probability of the comity finding evidence to war crimes is too great, so they decided not to recognize the whole procedure, as it was their only hope of getting away with it?

E. It’s easy to show that Siskind is “guilty” of the same crime he accuses Goldstone of: that is, cherry picking events that suit his theory, and ignoring all evidence going the other way. There is, for example, the case of the white phosphorous bombing – which Israel doesn’t even deny (only claim it was “a mistake”) – I didn’t see anything in the article about it, nor about several other cases where hard evidence exists. From reading the piece one gets the impression that Israel dropped only leaflets on Gaza. So how did we ended up killing twelve hundred people?

F. Going back to Yesterday’s cabinet meeting – I think that the government’s decision says it all: Israel didn’t form its own investigative comity; instead, Netanyahu went public demanding that war laws will be changed “in order to better suit the war on terrorism”. When do you demand that laws, if not entire moral concepts, will be reformed? As Dick Cheney could have explained – when under the existing laws, you become a criminal yourself.

G. Finally – and I think some of my leftists friends are not going to like this one – Netanyahu does raise a good point. There are cases of justified military action in a civilian area, and they are almost certainly going to lead to civilian casualties. Liberals are making life way too easy for themselves by not coming up with an answer on this one. Even if you think – like I do – that Israel is somewhat responsible for the escalation that led to operation Cast Lead because of the siege on Gaza, what do you do when there is a good reason for military operations in such places? Especially when these civilian areas are used by people (call them terrorists or whatever other name you want to use) who are aiming at civilians to begin with? Is military action forbidden? How do we tell between a justified and legal response and an unjustified and “criminal” one?

What I’m getting at is this: Israelis are trying to have it both ways: claiming that they didn’t commit war crimes – and saying that war treaties and laws of the 20th century can’t be applied today – because every country that will have to deal with modern day military situations won’t be able to avoid war crimes. And these arguments are mutually exclusive.

Personally, I think that (a) the war in Gaza wasn’t justified; (b) Israel did commit war crimes (and didn’t even try too hard to avoid them); (c) any other army would have committed some war crimes in the same situation (but that doesn’t release us from responsibility).


2 Comments on “The Goldstone Report: A response to Lawrence Siskind’s “Lawyer’s Perspective””

  1. 1 Aviv said at 11:28 am on October 21st, 2009:

    C – Are you being willfully stupid? Why will you argue for equality in the Israel Railways affair but fail to grasp the concept when the State of Israel is judged?

    G – I don’t think “Israel upholds int’l law” and “the 4th Geneva Convention needs to be reinterpreted” are mutually exclusive.

    I’m not a lawyer, but as I understand it, the law needs to be interpreted to fit changing circumstances. Israel has made its interpretations and acted upon them. Under that interpretation – no war crimes were made. But interpretations may vary. Many Israelis think Israel’s interpretations make sense, and that they should be set in stone, so to speak. This requires amending the law.

  2. 2 spux said at 5:54 am on October 22nd, 2009:

    It’s hardly a legal perspective on the report, in fact it barley mentions the report at all, but instead smears the report’s instigators.

    He should also note that at least Israel is represented and can vote at the UN, the same can not be said of The Palestinians.